An interesting case is White v. White, 344 N.J. Super. 211 (Ch. Div. 2001). This is the first reported New Jersey decision addressing the admissibility of a husband’s “private†e-mail communications between himself and his girlfriend accessed by the wife’s computer expert. The court denied the husband’s motion to suppress the e-mails on the grounds that the wife’s action violated the New Jersey Wiretap Act. Finding that the e-mails had been stored, i.e., saved, “post-transmission†in the husband’s personal electronic file cabinet, the court held that the Wiretap Act only applies to communications that are in transmission, and not to those that have been previously sent and saved.
The White court further held that the wife’s accessing the “private†e-mail communications of the husband did not constitute an invasion of privacy since the husband had no objective reasonable expectation thereof. The evidence showed that the e-mails were accessed from a computer maintained in a sun room that the husband had been occupying during the parties’ in-house separation; that the wife and the parties’ three children were in and out of the room for various reasons, including the use of the computer; and that, while easy to do, the husband failed to employ any privacy protection mechanisms to prevent unwarranted intrusions into his personal files. The court also found that the wife’s arguable snooping into her husband’s personal affairs to learn information about his possible affair was not uncommon under such circumstances.
6. What are the other potential legal ramifications of accessing my spouse’s stored computer files?
In many cases, a spouse who suspects adultery will hack into the cheating spouse’s computer files and e-mails. As discussed above, if the computer is not located in the marital residence, then this intrusion will constitute a violation of both New Jersey and federal wiretapping laws. In addition, there may be some tort liability. Hacking into your spouse’s computer may constitute the common law tort of invasion of privacy or invasion of seclusion. Hacking into your spouse’s computer could also be considered as theft. However, in my experience, it is very unlikely that a prosecutor would file any type of criminal charges if a spouse hacked into a home computer. The prosecutor may be more interested in pursuing theft charges if the computer hacking occurs on the cheating spouse’s computer that is located at his place of employment, or from a computer system of a corporation or financial institution.
7. What is the status of the law with regard to the interception of a spouse’s e-mails and computer records?
With the current prevalence of internet sex and resulting divorce litigation, wiretapping violations are at the forefront in many divorce cases. A spouse who tries to prove adultery by retrieving messages from hard drives, internet services, recycle bins, or other areas of storage could clearly be in violation of both New Jersey and federal wiretapping laws. In summary, the information that was obtained to verify the adulterous relations may be invaluable on a personal level. However, any evidence that is obtained by illegal wiretapping or by illegal hacking into a spouse’s computer should not be used as leverage in a divorce case. An experienced divorce lawyer can actually use the act of illegal wiretapping as grounds to file a civil suit against the violating spouse. The civil suit is filed as part of the divorce case and is called a Tevis claim. The cheating spouse can actually use the wiretapping violation as a bargaining chip to obtain a more favorable divorce settlement.